Corporate Personhood Cannot Withstand Organized Persons

By davidswanson - Posted on 16 January 2012

There are many schemes now for undoing the doctrines under which corporations claim constitutional rights and bribery is deemed constitutionally protected "speech." Every single one of these schemes depends on a massive movement of public pressure all across the homeland formerly known as the United States of America. With such a movement[1], few of the schemes can fail. Without it, we're just building castles in the air. Nonetheless, the best scheme can best facilitate the organizing of the movement.

The U.S. Constitution never gave any rights or personhood to corporations or transformed money into speech. It ought not to be necessary to amend a document to, in effect, point out that the sky is blue and up is not down. If the Supreme Court rules that Goldman Sachs can send legislation directly to the White House and cut out the congressional middleman, will we have to amend the Constitution to remove the Goldman Sachs branch of government? Where will this end?

The Constitution also never gave the Supreme Court the power to overturn every law passed by Congress. In fact, the Constitution explicitly gives Congress the power to set exceptions and regulations on what types of cases the Supreme Court can take. So, Congress could take some types of cases away, although it might have to be a great many.

The Constitution also allows the Congress to impeach and remove Supreme Court justices. Congress could remove the most corrupt one or two or three or four or five and only consent to new justices opposed to corporate personhood.

Congress could also just ignore the Supreme Court on this matter and pass a flood of legislation regulating and stripping corporations of their outrageous claims to power, compelling the court to take up case after case.

The reason none of these things is happening is, of course, the weak link smack in the middle of them: Congress.

Lower courts and/or state legislatures could likewise place sanity and decency above the "Citizens United" Supreme Court — if judges or delegates had the nerve to become what the New York Times might mock as "justice vigilantes." The Montana Supreme Court has just done this, so it can't be simply dismissed.

Amending the Constitution seems harder and more extreme than most other schemes. But that fact is itself a reason to favor amending the Constitution. Doing so ought not to be viewed as extreme. It is a sign of disease in our political system that we view it that way. There is tremendous benefit in the act of amending the Constitution itself, and we should have amended it and completely reworked and rewritten it many times by now. Instead we've barely tweaked the thing, and with the exception of an amendment on Congressional salaries proposed in 1789 and finally ratified by Michigan in 1992, we haven't touched the Constitution at all in over 40 years. By amending it through a process with popular support, we can reassert the power of the people over the government and open up the possibility of amending the Constitution further.

We have a horribly outdated broken system of government that stifles democracy. The closest thing to democracy in it is the process by which it can theoretically be amended. I would strongly favor amending the Constitution even if it were only to cross a t or dot an i. Amending it to end corporate personhood and money-speech is, thus, an important goal for multiple reasons. And it opens up the possibility of creating other systemic reforms in the process if we convene a new Constitutional Convention.

Amending the Constitution can be begun by Congress and completed by three-quarters of the state legislatures. Or it can be begun by two-thirds of the state legislatures and completed by three-quarters of them. So, one weak link is the states. Another possible weak link is the Congress. The only way to strengthen either of them is with intense, deep, and wide-spread nonviolent people power. And that power can be energized by and organized around a desired amendment. This approach has the advantage[1] of building power in the states, where state legislatures and courts can be urged to also attempt other approaches to the same problem. And it has the advantage of circumventing Congress if necessary. If you ask me, most people are underestimating the likelihood that such circumvention will be necessary.

A great boost to the effort is MoveToAmend.org's development of what many now see as the ideal amendment:

Section 1. The rights protected by the Constitution of the United States are the rights of natural persons only.Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law. The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.Section 2. Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure. Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed. The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.Section 3. Nothing contained in this amendment shall be construed to abridge the freedom of the press.

This is very similar to the amendment proposed by FreeSpeechForPeople.org:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.Section 3. Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

The above has the advantage of having been introduced already in the U.S. House by Congressman Jim McGovern as HJRes88. Promoting that amendment can help build the movement, but the text of it leaves wealthy individuals who are not corporations but actual flesh-and-blood billionaires the power to consider the spending of money on elections as protected speech. The MoveToAmend version does not have this weakness.

Other amendments are also worth promoting despite various limitations. Congresswoman Donna Edwards' HJRes78 also does not address money as speech and does not address the overarching question of corporate rights (the problems with which are not limited to elections), but it does create the power for Congress and states to regulate and restrict (it does not say eliminate) corporate political spending. Similarly, so does Congressman Ted Deutch's HJRes82.

Of course everything need not be in one amendment if more than one can be passed. Senator Tom Udall's SJRes29, like Congresswoman Marcy Kaptur's HJRes8, Congresswoman Betty Sutton's HJRes86, and Congressman Kurt Schrader's HJRes72, goes after money as speech by giving Congress and states the power to limit election spending. But I want to eliminate, not limit, private election spending. Even MoveToAmend's amendment says that the government can "regulate, limit, or prohibit" such spending, and even the regulating or limiting won't simply happen automatically. First the Congress or the state legislature that benefits from not regulating or limiting will have to turn on itself.

Then there's Congressman Deutch's HJRes90, and Senator Bernie Sanders' SJRes33, which goes after corporate personhood, but only for for-profit corporations. This leaves a loophole for not-for-profit corporations and entities such as labor unions or PACs like Citizens United. Any such loophole not only makes this amendment hard to pass into law, but the loophole would very likely be exploited by the wealthiest elite to the great disadvantage of ordinary people and of labor unions. This amendment, in a later section, gives Congress and the states the power to limit (it does not say eliminate) election spending by any organization or individual, including candidates themselves. But how, if at all, would such power be used?

Public Citizen at Democracyisforpeople.org proposes language that tries to block corporations from setting up front groups while at the same time permitting election spending by any corporation not "created for business purposes." But why create years of lawyering over what is and is not a business purpose? Why not just get the money out of the elections?

Russell Simmons has proposed an amendment that does that. It does not deal with corporate personhood in its many other areas, but it does address elections as directly as anything I've seen. It does not mention states, and I am convinced that including states' rights to outlaw bribery is essential to getting this approved by three-quarters of the states. This amendment does not bother to say that corporations are not people or that speech is not money, but simply proceeds as if that and the blueness of the sky were obvious. (Yet it may be absolutely necessary to state that corporations are not people and that money is not speech in order to build the public movement required for passage.) This amendment also requires criminal penalties for violation:

Section 1. All elections for President and members of the United States House of Representatives and the United States Senate shall be publicly financed. No political contributions shall be permitted to any federal candidate, from any other source, including the candidate. No political expenditures shall be permitted in support of any federal candidate, or in opposition to any federal candidate, from any other source, including the candidate. Nothing in this Section shall be construed to abridge the freedom of the press.Section 2. The Congress shall, by statute, provide limitations on the amounts and timing of the expenditures of such public funds and provide criminal penalties for any violation of this sectionSection 3. The Congress shall have the power to enforce this article by appropriate legislationSection 4. This article shall be inoperative unless it is ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution.

Arguably more will be needed than even MoveToAmend's comprehensive amendment. If we block off corporate spending except through the media, guess what the media will become even more than it is now! Without public financing, free media for candidates, and disintegration of media monopolies, the reform effort breaks down. Without other electoral reforms, the choices of candidates could remain extremely limited. We should have automatic registration, reasonable ballot access, an election day holiday, publicly hand counted paper ballots, a limited election season, no more electoral college, a larger House, no more Senate, and the popular power to legislate by initiative, along with numerous other possible reforms that could be combined into a coherent package by a Constitutional Convention, and which could be underscored by the individual national right to vote that is scandalously absent from the Constitution now.

An amendment proposed by Wolf-pac.com includes public financing:

"Corporations are not people. They have none of the Constitutional rights of human beings. Corporations are not allowed to give money to any politician, directly or indirectly. No politician can raise over $100 from any person or entity. All elections must be publicly financed."

It's not clear to me, however, that corporate lawyers and former corporate lawyers serving as judges could not construe a great deal of electoral spending as something other than indirect giving to a politician. It would also help if this amendment rejected the notion of spending money as speech. Lawrence Lessig has posted an amendment at Lessig.tumblr.com that, like this one, creates public financing but limits rather than outlawing private financing.

An amendment proposed by RenewDemocracy.org includes a right to vote:

"The right of the individual qualified citizen voter to participate in and directly elect all candidates by popular vote in all pertinent local, state, and federal elections shall not be questioned and the right to vote is limited to individuals. The right to contribute to political campaigns and political parties is held solely by individual citizens. Political campaign and political party contributions shall not exceed an amount reasonably affordable by the average American. The rights of all groups, associations and organizations to other political speech may be regulated by Congress but only as to volume and not content and only to protect the right of the individual voter’s voice to be heard."

The strength of this amendment in providing the right to vote and directly elect (thus eliminating the electoral college and allowing national vote counting standards, among other reforms) is, to my mind, weakened by the failure to simply get rid of the money and provide public financing. This is also, of course, not an amendment to remove corporate personhood across the board. Of course, if we had a Congress that would back this amendment, we might have a Congress that would effectively implement it. Lacking either at the moment, I'm more inclined to find a solution that does not rely on Congress to pass a bunch of wise and democratic laws.

GetMoneyOut.com has posted an amendment that also does not take on corporate personhood but does address election spending quite well, including the money-is-speech nonsense, and rather randomly throws an election day holiday into the same amendment. It does not, however, explain who will pay for elections or mention public financing:

"No person, corporation or business entity of any type, domestic or foreign, shall be allowed to contribute money, directly or indirectly, to any candidate for Federal office or to contribute money on behalf of or opposed to any type of campaign for Federal office. Notwithstanding any other provision of law, campaign contributions to candidates for Federal office shall not constitute speech of any kind as guaranteed by the U.S. Constitution or any amendment to the U. S. Constitution. Congress shall set forth a federal holiday for the purposes of voting for candidates for Federal office."

Drawing on the best of all of these drafts and proposals, let me dare to offer the following:

PROPOSED CHANGES TO THE U.S. CONSTITUTION

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law. The privileges of artificial entities shall be determined by the People, through Federal, State, or local law.

The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.

All elections for President and members of the United States House of Representatives and the United States Senate shall be entirely publicly financed. No political contributions shall be permitted to any federal candidate, from any other source, including the candidate. No political expenditures shall be permitted in support of any federal candidate, or in opposition to any federal candidate, from any other source, including the candidate. The Congress shall, by statute, provide limitations on the amounts and timing of the expenditures of such public funds and provide criminal penalties for any violation of this section.

State and local governments shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for state or local public office or any state or local ballot measure.

The right of the individual U.S. citizen to vote and to directly elect all candidates by popular vote in all pertinent local, state, and federal elections shall not be violated. Citizens will be automatically registered to vote upon reaching the age of 18 or upon becoming citizens at an age above 18, and the right to vote shall not be taken away from them. Votes shall be recorded on paper ballots, which shall be publicly counted at the polling place. Election day shall be a national holiday.

Nothing contained in this amendment shall be construed to abridge the freedom of the press. During a designated campaign period of no longer than six months, free air time shall be provided in equal measure to all candidates for federal office on national, state, or district television and radio stations, provided that each candidate has, during the previous year, received the supporting signatures of at least five percent of their potential voting-age constituents. The same supporting signatures shall also place the candidate's name on the ballot and require their invitation to participate in any public debate among the candidates for the same office.

##

No doubt, that can be improved upon. All will be possible if people get mobilized. Cities are passing initiatives and resolutions already demanding an end to corporate personhood. Localities are restricting corporate rights. State legislatures are considering throwing their support behind the movement. State courts are in some cases already there. Books are being published, forums held, and groups organized. An effort that must be largely educational is well underway. Events are planned in over 100 cities and towns on January 20th and 21st. Now is the time to join this movement.[1]

David Swanson is the editor of a new book called "The Military Industrial Complex at 50," and a campaigner for RootsAction.org.